Monday, October 28, 1996
By AJ Harwin
Daily Bruin Contributor
Put on the California ballot by petition signatures, Proposition
207 or the "Attorneys. Fees. Right to Negotiate. Frivolous
Lawsuits" initiative is considered one of the most obscure and
least significant initiatives of all the propositions on this
year’s ballot.
However, critics of the ballot claim that if passed, the
initiative could mean higher insurance and health care costs for
Californians. But attorneys argue that the measure will punish
lawyers who file frivolous lawsuits while protecting consumers’
contingency fees.
"We conducted extensive public polling votes. We found … the
public understands the contingency system," said Bruce Brusavich of
Consumer Attorneys of Los Angeles.
"It gives the public the opportunity to say ‘do not restrict our
right to hire a lawyer on a contingency fee, it’s our opportunity
to hire a good lawyer,’" Brusavich said.
If passed, Proposition 207 would prohibit restrictions on the
right to negotiate the amount of attorney’s fees, whether fixed,
hourly or contingent, while at the same time prohibiting attorneys
from charging or collecting excessive fees.
If an attorney is being paid by a contingency fee, the attorney
receives a percentage of the recovery that the attorney is able to
win for his or her client. This is helpful for those who cannot
hire the same quality of lawyers that big corporations can
afford.
"The basic purpose is to insure that the public is allowed to
obtain an attorney despite their financial situation," said David
Casselman, of the law firm Wasserman, Comden & Casselman.
"When the poor men of society are wronged, whether racially,
economically, or physically, they do not have the means to hire a
lawyer to redress their injury. The contingency fee was developed
to permit people who could not afford to hire a lawyer, to obtain
the very best of lawyers," Casselman said. "The fee is contingent,
because the lawyer receives nothing unless he recovers something
for his client."
However, those opposing 207 see it’s potential results in a
vastly different light. They argue that that the intent of 207 is
purely to give lawyers the ability to take whatever they can from a
client.
The Association for California Tort Reform (ACTR), calls
Proposition 207 "a smoke screen by ambulance-chasing lawyers that
guarantees their ability to take outrageous fees."
Some believe that the real reason lawyers want the measure to
pass is to insure that of the thousands of dollars lawyers make off
lawsuits, only a fraction of the settlements will be given to their
client as compensation.
"It’s a proposition put on the ballot by trial lawyers," said
Sarah F. Cheaure, the executive director of Citizens Against
Lawsuit Abuse.
"I believe they’re calling themselves Consumer Attorneys,"
Cheaure said.
Those against Proposition 207 argue that, if passed, it would
allow for more frivolous lawsuits, costing consumers millions of
dollars per year for the state, resulting in higher costs for such
things as insurance and health care.
Nevertheless, Proposition 207 authorizes the court and the state
bar to sanction or recommend disciplinary measures against
attorneys who file frivolous lawsuits. Attorneys would not be
allowed to collect fees when sanctioned by the court for a
frivolous legal action, and they could their license after filing
three frivolous lawsuits.
"The balancing provisions of 207 are designed to insure that
lawyers would not be permitted to overreach either in their fee
agreements or by filing excessive or unjustified lawsuits,"
Casselman said.
Under current laws, the courts and the state bar retain
discretion over frivolous lawsuits, but are not required by law to
sanction or recommend disciplinary measures. If an attorney is
sanctioned for a frivolous lawsuit, the attorney is still able to
receive legal fees.
Proposition 207, sponsored by the Consumer Attorneys of
California, was initially slated to be on last March’s ballot, but
did not acquire enough signatures. It was originally intended as a
counter to Proposition 202 on last March’s ballot, which did not
pass. If it had passed, Proposition 202 would have put a cap on
contingency fees.